S v Evans and Another (01/2019) [2019] ZANWHC 17 (9 May 2019)

S v Evans and Another (01/2019) [2019] ZANWHC 17 (9 May 2019)

The accused did not admit all elements of theft, specifically the unlawful appropriation (contrectatio) of the steel pipe. Their explanation indicated the pipe was found abandoned, not stolen from the mine or any lawful possessor. The Magistrate erred in convicting them of theft without proper admissions and failed to invoke section 113 of the Criminal Procedure Act. The High Court cannot substitute a conviction for possession of suspected stolen property after acquittal on that count. The delay in review proceedings was excessive and contrary to the urgency required in such matters. In the interests of justice, the conviction and sentence must be set aside and the accused reimbursed if...

Citation
[2019] ZANWHC 17
Parties
Applicant: The State; Respondent: Donavan Evans; Respondent: Frans Malinga
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
9 May 2019
Case Number
01/2019
Procedural Posture
Review Application / High Court Review of Magistrate's Conviction and Sentence
Outcome
Conviction and sentence set aside; accused to be informed and reimbursed if fines paid.
Judges
R.D Hendricks, J.T Djaje
Legal Topics
Theft, Possession of Suspected Stolen Property, Criminal Procedure Act Section 113, Review Proceedings, Magistrates Court Delay
Criminal Law Theft Possession of Suspected Stolen Property Criminal Procedure Act Section 113 Review Proceedings Magistrates Court Delay

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Parties

The State

Applicant

Donavan Evans

Respondent

Frans Malinga

Respondent

Procedural Posture

Review Application / High Court Review of Magistrate's Conviction and Sentence

Legal Issues

  1. 1 Whether the accused admitted all elements of theft in their guilty plea.
  2. 2 Whether the conviction for theft was competent given the facts and admissions.
  3. 3 Whether the High Court can substitute a conviction for possession of suspected stolen property after acquittal on that count.

Ratio Decidendi

The accused did not admit all elements of theft, specifically the unlawful appropriation (contrectatio) of the steel pipe. Their explanation indicated the pipe was found abandoned, not stolen from the mine or any lawful possessor. The Magistrate erred in convicting them of theft without proper admissions and failed to invoke section 113 of the Criminal Procedure Act. The High Court cannot substitute a conviction for possession of suspected stolen property after acquittal on that count. The delay in review proceedings was excessive and contrary to the urgency required in such matters. In the interests of justice, the conviction and sentence must be set aside and the accused reimbursed if...

Court Disposition

Conviction and sentence set aside; accused to be informed and reimbursed if fines paid.

Orders

  • The conviction and sentence of Donavan Evans and Frans Malinga are reviewed and set aside.
  • The Clerk of the Court, Rustenburg must ensure the accused are informed and reimbursed if fines were paid.